The difference between this town and the city of New-York relative to
the water rights of the former, has deservedly excited the attention and
interest of our inhabitants, as involving property to a great amount,
and unjustly withholding from our town a revenue which would enable it
to improve with almost unparalleled rapidity. In order that each person
so interested may form a correct opinion of the subject matter in
dispute, the Compiler has thought proper, under this head, to lay before
them the foundations of the claims on both sides of the question.
October 18, 1667. In the reign of Charles 2d. Richard Nicolls, Esq.
Governor General of the Province of New-York, under his Royal Highness
James, the Duke of York, &c. afterwards James 2d. of England, granted to
the inhabitants of this town a confirmatory patent, acknowledging that
they were rightfully, legally and by authority in possession of the
property and privileges they then enjoyed. The patent after naming the
patentees, and describing the bounds of the town, and binding by the
_River_ and not by high water mark, proceeds to say, “Together with all
_havens_, _harbors_, creeks, marshes, _waters_, _rivers_, lakes,
fisheries.” “Moreover, I do hereby give, ratify and confirm unto the
said patentees and their associates, their heirs, successors and
assigns, all the _rights_ and _privileges_ belonging to a town within
this government.” Under this patent the town of Brooklyn justly claims
the land between high and low water mark on their shore, in opposition
to the claims of the Corporation of the city of New-York; and an equal
right with them to erect ferries between the town of Brooklyn and the
city of New-York.
It does not appear that there was any adverse claim on the part of
New-York, until the 27th of April, 1686, _nineteen years_ after the date
of the Brooklyn patent, when the Corporation of New-York obtained a
charter from Governor Dongan, by which the ferries were granted to them,
but not a word mentioned about the land between high and low water mark
on the Brooklyn side. From the reading of this charter it appears as if
the Governor was doubtful as to his right even to grant the ferry, for
it contains an express saving of all the rights of all other persons,
bodies politic and corporate, their heirs, successors and assigns, in as
ample a manner, as if that charter had not been made.
May 13, 1686. The freeholders and inhabitants of Brooklyn somewhat
apprehensive of encroachments by New-York, obtained from Governor
Dongan, a patent under the seal of the Colony, fully confirming that
granted them by Governor Nicolls.
May 6, 1691. An act was passed by the Governor, Council and General
Assembly of the Colony of New-York, “for settling, quieting and
confirming unto the cities, towns, manors, and freeholders within this
Province, their several grants, patents and rights respectively.” By
this act the freeholders and inhabitants of the town of Brooklyn were
confirmed in the rights they possessed and enjoyed under their two
several patents.
October 12, 1694. The Corporation of New-York, not thinking their
foothold on the Brooklyn side sufficiently secure, purchased of one
William Morris, for no specific consideration, a piece of land in
Brooklyn near the ferry. This deed is the foundation of the Corporation
claim to their land in the village of Brooklyn. A copy of which will be
found in the appendix marked with the letter A.
Bent on unjustly wresting from the town of Brooklyn their water right,
the Corporation on the 19th of April, 1708, obtained from Governor
Cornbury, a man infamous for his vices, and disregard of justice,
another charter, in which they came out more openly than before, and
claimed the _vacant_ land to high water mark, on Nassau Island,
reserving to the inhabitants of Brooklyn the right of transporting
themselves in their own boats ferriage free, to and from New-York.[6]
By this charter, no matter how ample soever they might have considered
it at the time, they obtained nothing but _vacant_ land to high water
mark; that is the land which was not already granted, and in the
possession of some other person or persons, which was not the fact as to
the land on the Brooklyn side, it being vested in the patentees, their
heirs, successors and assigns forever; so that the only power or
authority remaining in the Governor, was to grant the Corporation of
New-York, the privilege of buying the water rights of the inhabitants of
Brooklyn. But that would not answer their purpose, for those rights
could be bought cheaper of Governor Cornbury, than they could of this
town.
This proceeding on the part of New-York stimulated the inhabitants of
Brooklyn to obtain from the Colonial Legislature in 1721, an act
confirming their patent rights.
To obviate the effects of this law, and strengthen the charter of
Cornbury, which from the circumstances under which it was obtained, the
Corporation feared was invalid, on the 15th of January, 1730, they
procured from Governor John Montgomerie, a new charter confirming their
pretended right to the land to _high water mark on our shore_.[7]
The grants from the Corporation of New-York, under their two charters
for the water lots on the Brooklyn side, are very artfully and
ingeniously drawn. By those grants are only conveyed “all the estate,
right, title, interest, property, claim, and demand whatsoever, in law
and equity” of them the said Corporation; and their covenant for quiet
possession only extends to them and their successors, and not against
any other persons lawfully claiming the premises. These grants, in order
to save the Corporation harmless against the claims of Brooklyn, also
contained a covenant to the following effect: “It is hereby covenanted,
granted and agreed upon by and between the parties to these presents
(that is, the Corporation of New-York and the person to whom they give
the grant,) and the true intent and meaning hereof also is, and it is
hereby declared, that this present grant, or any words, or any thing in
the same expressed, or contained shall not be adjudged, deemed,
construed or taken to be a covenant or covenants on the part and behalf
of the said parties of the first part, (that is, the Corporation of
New-York) or their successors for any purpose or purposes whatsoever,
but only to pass the estate, right, title, and interest, they have or
may lawfully claim by virtue of their several charters, of in and to the
said premises.” Which covenant evidently shews a want of confidence in
the validity of their title on the part of the Corporation.
October 14, 1732. An act was passed by the General Assembly of this
Colony, “confirming unto the City of New-York its rights and
privileges.” By this act no addition was made to their former pretended
rights.
November 14, 1753. The freeholders and inhabitants of this town
appointed Jacobus Lefferts, Peter Vandervoort, Jacob Remsen, Rem Remsen,
and Nicholas Vechte, Trustees, “to defend our patent where in any manner
our liberties, privileges and rights in our patent specified is
encroached, lessened or taken away by the commonalty of the city of
New-York.” A copy of the proceeding of the town meeting at which the
above trustees were elected will be found in the appendix marked B.
Not satisfied with the encroachments they had made, the Corporation
began to question the right of the inhabitants of Brooklyn to cross to
and from New-York ferriage free in their own boats, and to carry over
the inhabitants in those boats;--the result was, that in July, 1745, a
suit was commenced by one of the inhabitants of Brooklyn, named Hendrick
Remsen, against the Corporation of New-York, which was tried before a
jury in Westchester county. A special verdict was found setting forth
all its patents and charters, and among other things, that the road from
which the said Hendrick Remsen ferried the inhabitants of Brooklyn to
and from New-York, “then and long before was laid out for a public
highway leading down to _low water mark_ on the East River between the
places aforesaid called the Wallaboucht and the Red Hook on Nassau
Island, and the jurors aforesaid upon their oath aforesaid, do further
say, that the River called the East River, over which the said Hendrick
did carry the persons and goods aforesaid, from the said lands between
the Wallabocht and the Red Hook, is a large and public and navigable
river used by his Majesty’s ships and other ships and smaller vessels
employed in trade and commerce, and hath always been so used from the
first settlement of this Colony.” On argument judgment was rendered by
the Supreme Court of this Colony in the month of October, 1775, in
favour of Hendrick Remsen, that he recover his damages against the
Mayor, Aldermen and Commonalty of the city of New-York, and the sum of
one hundred and eighteen pounds, fourteen shillings and ten pence half
penny for his costs and charges. An appeal to the King and Council from
this decision, was brought by the Corporation, which was not determined
in consequence of the Revolutionary war. There is a tradition in this
town that the Corporation of New-York were so apprehensive of this claim
on the part of the town of Brooklyn, that in order to disengage Hendrick
Remsen from the interest of the town, they gave him a house and lot of
land near Coenties Slip, in the city of New-York. How far this tradition
is correct, the Compiler is unable to say.--It appears however, that he
about that time became in possession of such property, and the same
remained in his family within the memory of some of our inhabitants.
Our two Patents are confirmed by the Constitution of this State, which
confirms all grants of land within the State, made by the authority of
the King of Great Britain or his predecessors, prior to the 14th of
August, 1775.
The Compiler thinking it would not be uninteresting to his fellow
citizens to see a statement of the amount received by the Corporation of
New-York for quit rent on the water lots claimed by them, has given the
following short statement.
The Commissioners of the Sinking Fund of the City of New-York have
received, from August 23d, 1813, to Dec. 31, 1824.
For Water lot rents, $17,635 24
Commutation for water lot rents, 17,275 41
----------
$34,910 65
----------
The Corporation of New-York during the present
year 1824, have received for water lot rents
the sum of $8,862 97
Within a short time the jurisdiction of the village of Brooklyn has been
extended beyond low water mark, leaving the pretended right of soil
still in the Corporation of New-York.[8] August term, 1821, in the case
of Udall vs. the Trustees of Brooklyn, the Supreme Court of this State
decided that Kings County, of which the village of Brooklyn is part,
includes all the wharves, docks, and other artificial erections in the
East River, opposite to the City of New-York, though west of the natural
low water mark on the Nassau or Long-Island shore; and the jurisdiction
of the village extends to the actual line of low water, whether formed
by natural or artificial means. Same term, in the case of Stryker vs.
the Mayor, &c. of the City of New-York, the Supreme Court decided that
the city and county of New-York includes the whole of the Rivers and
harbour adjacent to actual low water mark, on the opposite shores, as
the same may be formed, from time to time, by docks, wharves and other
permanent erections; and although the jurisdiction of the city does not
extend so as to include such wharves, or artificial erections, yet it
extends over the ships and vessels floating on the water, though they be
fastened to such wharves or docks.
April 9, 1824. The Legislature of the State of New-York in the act to
amend the act entitled “an Act to incorporate and vest certain powers in
the freeholders and inhabitants of the village of Brooklyn in the County
of Kings,” granted this town concurrent jurisdiction with the City of
New-York in the service of process, in actions civil and criminal, on
board of vessels attached to our wharves; and in the act for the
establishment of a Board of Health in the village of Brooklyn, authority
is given to the said Board to remove all infected vessels from the
wharves within the said village.
The ferries have been unavoidably, in some degree, taken into
consideration when speaking of our town rights. The compiler will
therefore confine himself to such historical facts, and laws, and such
proceedings, passed and had by the Colonial and State legislatures as
may relate particularly to them.
During the early years of this Colony, the old ferry was from near the
foot of Joralemon-street, to the Breede Graft, now Broad-street, in the
City of New-York. At that period a creek ran through the middle of
Broad-street, up which the boats ascended to a ferry-house which is
still standing. At this time it is difficult to ascertain the exact
period when the old ferry was established at its present situation on
the Brooklyn side. In 1697, John Aeresen was ferry master.
It appears from the following order, that the Court of Sessions of Kings
County, exercised some authority over the ferry between Brooklyn and
New-York. October 7, 1690. “Whereas much inconvenience does arise by
several negroes coming on this Island from New-York and other places,
and from this Island to New-York. It is ordered, that the ferrymen
shall not bring or set over any negroes or slaves upon the Sabbath day,
without a ticket from their masters.”
Acts have been passed by the Colonial and State legislatures for the
purpose of regulating the ferries between this town and the City of
New-York, in the following chronological order:
November 2d, 1717, an act was passed, which was revived in the year
1726, and again in 1727. October 14, 1732. Another act was passed for
the same purpose. By this act it was provided, “That the ferryman for
the time being, shall not impose, exact, demand, or receive any rates or
ferriage for any goods or things whatsoever, transported by any of the
inhabitants living alongst the River at or near the Ferry on
Nassau-Island, in their own boats or canoes,” provided that the same be
their own goods or commodities. This act continued in force until the
28th of February, 1789, when another act was passed regulating the
ferriage, and containing a similar proviso. April 9, 1813. The last
mentioned law was re-enacted, with the same provision.
The winter previous to the prosecution of the suit between Hendrick
Remsen, and the Corporatiun of the City of New-York, the inhabitants of
Brooklyn made an attempt to obtain from the Colonial legislature, a
further confirmation of some of their rights, particularly relating to
the ferry; on which application the following proceedings were had.
January 30, 1745-6. In General Assembly, a petition of the Trustees of
the town of Brookland, in Kings County, in behalf of themselves, and the
freeholders and inhabitants of the said township, was presented to the
House and read, setting forth, That a great number of the inhabitants of
the said township, living near the ferry from Nassau-Island to New-York,
and having their chief dependence of supporting their families by
trading to the New-York markets, are by one act of the General Assembly,
entitled, an act to regulate the ferry between the City of New-York and
the Island of Nassau, and to establish the ferriage thereof, passed in
the sixth year of his Majesty’s reign, debarred from transporting their
goods in their own vessels, to the said markets, which exposes them to
very great hardships, difficulties and expences, and therefore humbly
praying that they may have leave to bring in a bill to relieve them from
the aforesaid hardships. Upon a motion of Major Van Horne, (of New-York)
ordered, that the Clerk of this house serve the Corporation of the City
of New-York, with a copy of the said petition forthwith.
In General Assembly, April 12, 1746, Mr. Abraham Lott, according to
leave, presented to the house, a bill entitled, “an act to repeal an act
therein mentioned, so far as it relates to the freeholders and
inhabitants of the township of Brooklyn, in Kings County, within this
colony;” which was read the first time, and ordered a second
reading.--Ordered, that the Corporation of the City of New-York, be
served with a copy of the said bill.
April 18, 1746. In General Assembly. The bill entitled, an act to repeal
an act therein mentioned, so far as it relates to the freeholders and
inhabitants of the township of Brooklyn, in Kings County, within this
colony, being offered to be read a second time, Capt. Richards (of
New-York) moved, that the second reading of the said bill might be
deferred until the next meeting of the House, after the first day of
June next; which was agreed to by the House and ordered accordingly.
June 20, 1746. In General Assembly. A petition of the Mayor, Aldermen
and Commonalty, of the City of New-York, was presented to the House and
read, setting forth, That the Corporation having been served with a copy
of a bill now before this House, entitled, an act to repeal an act
therein mentioned, so far as it relates to the freeholders and
inhabitants of the township of Brooklyn, in Kings County, within this
colony; do conceive that the passing the said Bill into a law, may
affect their ancient rights and freehold, and therefore humbly praying
that they may be heard by their Counsel against the said bill, at the
bar of this House, on Friday next, ordered, that the Trustees of the
township of Brooklyn, be heard by their counsel in support of the said
Bill, at the bar of this house, on Friday next, and that Mr. William
Smith appear for them. Ordered, that the Clerk of this house serve the
parties with a copy of these orders forthwith.
June 27, 1746. In General Assembly. The House being informed, that the
Corporation of the City of New-York were attending with their Counsel to
be heard against the Bill; and that the Trustees of the township of
Brooklyn, were also attending with their Counsel to be heard in support
of the said Bill; both parties were called in, and the counsel on both
sides having been fully heard, for and against the said Bill, they were
directed to withdraw; and the Bill being read the second time, the
question was put,--whether the said Bill should be committed, and
carried in the affirmative in the manner following:--Affirmative,
Messrs. Lott, Chambers, Stillwell, Livingston, Harring, Cornell, Abraham
Lott, Lecount, Bradt, Nicoll, Hardenbergh, and Gale 12.--Negative,
Messrs. Richards, Cruger, Clarkson, Van Horne, Philipse, Morris,
Verplank, and Thomas, 8.
July 4, 1746. In General Assembly, the engrossed Bill entitled, an act
to repeal an act therein mentioned, so far as it relates to the
freeholders and inhabitants of the township of Brooklyn, in Kings
County, within this colony, was read the third time, and upon Mr.
Speaker’s putting the question, whether the Bill should pass, a motion
was made by Col. Morris in the words following, viz.--As this Bill has
been already ordered to be engrossed, by a majority of the House, and
the question that now is put, is, whether this Bill shall pass; I must
beg leave to give my reasons for opposing its passage. The first is, it
is alledged by this bill, that the people of Brooklyn had a right, prior
to the act passed in the year 1732, which was not proved, nor attempted
upon the hearing before this house; but if we pass this Bill, we allow
that right to be proved, and then it becomes our allegation, which I
conceive, inconsistent with the honor and justice of this house, to
alledge any thing in such a case, but what has been proved. The second
is, it implies that the act in 1732, took away unjustly, a right from
the people of Brooklyn, that they were entitled to. Thirdly, it implies,
that the house have fixed the two points before mentioned, and then it
will necessarily follow, that we have considered the rights of the
Corporation,[9] as well as those of the people of Brooklyn; that we have
not, I appeal to the house, who must allow, that no such right ever
appeared to us, at least as a House, and for us to declare certain facts
by a Bill, which has never been proved, will be doing, what I conceive,
we ought not to do, if we make justice and equity the rule of our
conduct. For these reasons, I move, that the Bill may be rejected. The
question being put thereon it was carried in the negative, in the
manner following, viz.----For the negative, Messrs. Chambers, Lott,
Cornell, Hardenbergh, A. Lott, Bradt, Lecount, Gale, and Harring, 9.
Affirmative, Messrs. Cruger, Morris, Richards, Van Horne, Clarkson,
Verplank, Philipse, and Thomas, 8.
Resolved, That the Bill do pass. Ordered, that Colonel Harring, and Mr.
Hardenbergh do carry the Bill to the Council and desire their
concurrence. By which it appears that it was considered by the House, as
well as subsequently by the Supreme Court, that the right of the town
was sufficiently proved, notwithstanding the assertions of Colonel
Morris.
This Bill by _some means_ was stifled in the Council,[10] and never
became a law.
During the Revolution the Old ferry was kept by Messrs. Van Winkle, and
Bukett; at which period the usual charge for crossing was six pence for
each passenger.
August 1, 1795. The ferry from the foot of Main-street, Brooklyn, to the
foot of Catharine-street, New-York, commonly called the New ferry, was
established by Messrs. William Furman and Theodosius Hunt, lessees from
the Corporation of the City of New-York.
In consequence of the prevalence of the Yellow fever in Brooklyn, in the
month of August, 1809, the old ferry was removed to the foot of
Joralemon-street, and the boats plied from there to Whitehall, New-York.
On the 4th day of March, 1814. The legislature of this State passed an
act allowing William Cutting and others his associates, to charge four
cents for each passenger crossing in the Steam-boat to be by them placed
on the Old ferry. Previous to this, the fare was two cents for each
passenger. May, 1814, the Steam-boat commenced plying on the old ferry
between Brooklyn and New-York.
This Ferry Company derive their interest in the old or Fulton ferry,
from a lease executed January 24th, 1814, by the Mayor, Aldermen and
Commonalty of the City of New-York, to Robert Fulton, and William
Cutting. The rent reserved by the Corporation on this lease is $4000 per
annum for the first 18 years, and $4500 per annum for the remaining 7
years.[11] It is a difficult matter to speak correctly of the present
income of this ferry. At its first establishment the dividends were made
on a capital estimated at $45,000, divided into shares of $1000 each,
and were made at the rate of 5 per cent. for six months and what
remained after this 5 per cent. taken out, formed the surplus dividend.
From May 1814, to November 1815, the regular dividends on one share
amounted to $157 11½, and during the same period the surplus dividend
amounted to $228 21½, making a dividend of $385 33, on one share for
about 18 months equal to about 25 per cent. per annum.
At the Session of the Legislature in the winter of 1818, the Corporation
of New-York presented a petition praying that they might have the
regulation of the rates of ferriage between this town and the city of
New-York--against which the Trustees of the village of Brooklyn, and the
inhabitants of this town strongly remonstrated, stating that “they had
full confidence that the Legislature of this state would never increase
the rates of ferriage, nor permit the same to be increased, beyond what
is necessary to support the ferries in the best manner; they therefore
prayed that the Legislature would not surrender to the Corporation of
New-York a right, which had been reserved by the Legislature, and which
the petitioners deemed of the greatest importance to the inhabitants of
Nassau-Island.”